Can Space Go Private? The United States Clarifies Article II of the Outer Space Treaty

A blog post by Julie Tokar, Junior Associate

Whether life exists beyond Earth is one of humanity’s most sought-after question. The search for an answer is not only to discover whether other life exists, but also to find a mirror image of planet Earth with signs of possible life to inhabit. [1] However, one of the biggest issues becomes not if, but when, a newly discovered planet and its resources are deemed habitable. The problem may potentially create a similar situation to the infamous Space Race, where the Soviets and Americans competed in the 20th century race to the stars. [2] The foundation of international space law, article II of the 1967 Outer Space Treaty, asserts that “[o]uter space, including the moon and other celestial bodies, is not subject to national appropriation.” [3] However, the treaty also holds that “exploration and use of outer space should be carried on for the benefit of all peoples.” [4] Thus, with no clear meaning set forth, there is significant resistance in the international law community as to the interpretation of Article II of the Outer Space Treaty. [5]

The United States has taken the initiative to specify the legal regime for commercial space resources at the domestic level. Through the enactment of the Space Resource Exploration and Utilization Act (hereinafter “the Act”) as well as the Artemis Accords (hereinafter “the Accords”), the U.S. offers legal certainty to its private entities that space resource utilization activities are permissible without violating international law. Private entities are pushing to develop outer space to utilize its resources, sparking legal debate about the consistency of the Outer Space Treaty. [6] The Act and the Accords allow the United States to recognize private property rights in outer space due to the ambiguous nature of the Outer Space Treaty. [7] Thus, the United States clarifies that under Article II of the Outer Space Treaty, private entities and individuals are permitted to engage in the exploration and utilization of outer space resources. [8]




[1] Pat Brennan et al., The Search for Life, Nasa (last updated Nov. 10, 2020),

[2] Maddie Davis, The Space Race, Miller Center (last visited Nov. 17, 2022),

[3] G.A. Res. 2222 (XXI), Outer Space Treaty (Oct. 10, 1967).

[4] Id. (specifically stating in the annex that the treaty’s intention is to believe that the exploration and use of outer space should be carried on for the benefit of all peoples irrespective of the degree of their economic or scientific development).

[5] Shengli Jiang & Yun Zhao, The Aftermath of the US Space Resource Exploration and Utilization Act: What’s Left for China?, 11 J. of East Asia Int’l L. 9, 9 (2018).

[6] Brian J. Egan, The Next Fifty Years of the Outer Space Treaty, U.S. Dep’t of State (Dec. 7, 2016),

[7] Id.

[8] Id.

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